2013Du27005 Revocation of Disposition Rejecting an application for urban management planning draft

Marin Co., Ltd.

The astronomical Market

Daejeon High Court Decision 2013Nu1360 decided November 21, 2013

September 15, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. The judgment of the court below

A. As to the Plaintiff’s proposal for modification of an urban management plan to change the specific use area of land to be newly incorporated in the site of extension and extension of golf courses, which are urban planning facilities, from the preservation management area and the agricultural and forest area, to the planned management area where sports facilities are installed in the agricultural and forest area (hereinafter “instant proposal for modification”), the Defendant returned the instant proposal for modification on the ground that “the change of specific use area is inappropriate, and it is anticipated that excessive infringement of private property rights is anticipated to the land owners.”

B. The lower court determined that: (a) the Defendant’s disposition of this case on the ground that it is difficult to view that the Defendant’s disposition of this case on the ground that: (b) there is a need to compare and compare the public and private interests in the instant disposition with the public and private interests in the extension of a golf course; and (c) the result of feasibility studies on conversion of a mountainous district and the verification of land suitability assessment with respect to the drafting of this case is recognized as suitability in most items; (b) it is unreasonable to conduct the instant disposition without comparing and reviewing the aforementioned contents, even though it was a conditional acceptance of the drafting of this case; and (c) it is difficult to view that the Plaintiff’s disposition of this case on the ground that it was not 80% or more of the size of the site for which the Plaintiff was unable to secure rights until that time without giving a supplementary opportunity; and (d) it is difficult to view that it is reasonable to determine whether to reflect the drafting of this case in the Defendant’s urban management plan in the formulation of the Defendant’s urban management plan, and thus, it constitutes an abuse or abuse of discretionary authority.

2. The judgment of this Court

However, we cannot accept the above judgment of the court below for the following reasons.

A. An administrative plan refers to an activity criteria established to realize order at a certain point in the future by integrating and coordinating administrative means related to professional and technical judgments on administration in order to achieve a specific administrative objective. An administrative agency has relatively broad freedom of formation in formulating and determining a specific administrative plan. However, an administrative agency’s freedom of formation cannot be said to be unlimited. Since an administrative agency’s interest in the relevant persons is limited not only to public interest and private interest but also to be fairly compared and compared between public interest and private interest, administrative agency’s decision on the administrative plan may be deemed unlawful in that the administrative agency’s decision on the administrative plan lacks legitimacy and objectivity (see, e.g., Supreme Court Decision 2012Du2467, Jul. 10, 2014).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Plaintiff is operating a consensus club (hereinafter referred to as “instant golf club”) located in 529 Won-ri, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-do., Chungcheongnam-do.

2) On November 2, 2011, the Plaintiff made the instant draft proposal to the Defendant on November 2, 201, to extend the instant golf course to a square meters of 1,825,080 square meters by additionally constructing 820,448.7 square meters in the Dong and Seo-west part of the existing 18 holes membership golf course with the area of 1,004,631.3 square meters in the Dong and Seo-west part of the land.

3) The Defendant requested the Plaintiff to supplement the instant proposal several times through consultation with the related departments and related agencies, and the Plaintiff has complied with the request for supplementation.

4) The Defendant requested the Korea Land and Housing Corporation to verify and examine the land suitability assessment report attached to the proposal for the drafting of the instant case, and received and examined the results thereof, and requested the Plaintiff to submit the re-preparation land suitability assessment report by reflecting the comprehensive opinion of the verification result, and the Plaintiff submitted the re-preparation of the land suitability assessment report on March 6, 2012. According to the land suitability assessment report, the ratio of the land value of the site for the extension of the instant golf course was 5.15% and was investigated as falling under Category A, B, and C (Intermediacy rating).

5) On May 22, 2012, the Plaintiff submitted a report on the result of the feasibility study on conversion of a mountainous district to the Defendant. According to that report, the Plaintiff’s opinion was presented that: (a) although the project feasibility of the drafting proposal of this case was examined as meeting the pertinent standards from most items; (b) however, in the item of “restricted activities in a preserved mountainous district,” cultural heritage protection zones under the Cultural Heritage Protection Act shall be subject to restrictions on activities in accordance with the relevant laws; and (c) in the item of “in the impact of the management and administration of neighboring forests,” “shall be investigated and analyzed as having forest roads in the site where

6) The details and result of the deliberation by the Incheon City Urban Planning Committee on the instant draft proposal are as follows.

A) On May 3, 2012, members of the Urban Planning Committee visited the site for the extension of the instant golf course on site. The opinion on the site site was that “the intention to preserve the original green belt in most of the application site is good, but it is deemed that the area is insufficient to create 18 holes in the remaining area except this, and that the area of the existing golf course is likely to be obstructed in view of the landscape due to the installation of a high slope and a large number of golf courses, it is necessary to post a detailed plan, and that there is a large slope in the upper part of the site for the extension, and the detailed supplementation in the implementation plan is necessary. At least 90% of the green belt year, the preservation mountainous district is likely to have increased the number of civil petitions by residents due to the development exclusion grade at class 8 level in the green belt year, most of the green belt areas with high growth, the area of the existing golf course is wider, and it is difficult to determine that it is consistent with the current urban management plan that it is difficult to draw up the funds of this case or the golf course.”

B) In addition, the working-level department of the astronomical City proposed the opinion that "the site for the extension of the golf course in this case by the Plaintiff is 9.6% of the total site, the special-purpose area of the site can be substantially changed to the conservation management area and the agricultural and forest area into the planned management area, and it can be seen as an area with a strong conservation character rather than the development, such as partial restrictions on the right to use land under the National Land Planning and Utilization Act and the Urban Planning Ordinance at the time of the astronomical City in the preservation management area and the agricultural and forest area."

C) On May 24, 2012, which was held on May 24, 2012, the Urban Planning Committee rendered a conditional reexamination on the condition that “(i) review of related departments after proposing data on the current status of supply and demand of golf courses in the Do; (ii) presentation of data on determining private companies’ ability to raise funds for the extension of the instant golf course; (iii) presentation of data on determining whether the instant golf course conflicts with the foregoing cultural heritage; and (iv) presentation of data on determining criteria for determining whether natural green belt also exists; and accordingly, on May 30, 2012, the Defendant demanded that the Plaintiff present the above documents, (ii), (iii), and (iv). On June 8, 2012, the Plaintiff submitted to the head of the Defendant’s urban

D) On June 28, 2012, which was held on June 28, 2012, the April 2012 Incheon City Urban Planning Committee concluded a conditional deliberation resolution with the content of “to draw up not more than 325 meters from the height of the existing golf course,” which is the height of the golf course developed, and to secure the preservation green belt in its original form.”

7) On July 9, 2012, the Defendant issued the instant disposition that rejected the instant draft proposal. The reason for the instant disposition was ① The specific use area of the expanded site accounts for 99.6% of the total site area, so it is impossible to extend a golf course within the current specific use area due to the impossibility of extending a golf course in the existing specific use area. Therefore, it is inappropriate to alter the agricultural and forest area and conservation management area into the planning zone, but it is not appropriate to alter the specific use area even if the proposed purpose project is not a public project. ② In the case of proposing the installation of urban planning facilities, in principle, the land secured (including the consent) by the project implementer has secured 85.2% of the total amount (including the existing + the extension), but in the case of the extension of the amount, it is anticipated that excessive infringement of the right to consent to expropriation is anticipated at the time of drafting the proposal.

C. We examine these facts in light of the legal principles as seen earlier.

1) Determination on modification of an urban management plan regarding the alteration of specific use area or urban planning facilities is a kind of administrative plan. In light of the details and contents, etc. leading to the instant disposition, it cannot be deemed that the Defendant was justifiable and did not properly balance interests related thereto in the process of rendering the instant disposition.

A) In light of the fact that a public golf course is likely to be used to many and unspecified persons, and that it is a facility provided for the free use of the general public, even if established and operated by a private company, it cannot be deemed that there is no public interest, such as improving national health.

B) Since 99.6% of the site for the extension of the instant golf course needs to be modified to extend the golf course as an agricultural and forest area and a conservation and management area, the Defendant’s determination on whether to accept the drafting proposal of the instant golf course should compare the above public interest, private interest, etc. of the project for the extension of the golf course with the maintenance and management area and the conservation and management

C) As seen earlier, in light of the developments and contents leading to the instant disposition, the Defendant compared and compared the public interest gained by returning the drafting proposal of this case to the working division, and maintaining the specific use area (agricultural and forest area and conservation management area) of the expanded site, namely, promotion of the agricultural and forest industry, preservation of forests, securing of green space, preservation of ecosystem, and public interest such as improvement of national health, etc., based on the following: (i) as a result of the comparison and comparison of the Plaintiff’s business interest to be gained by the extension of a golf course through the drafting proposal of this case, and (ii) the Plaintiff’s business interest to be gained by the extension of a golf course and public interest such as improvement of national health, etc., it appears

D) Although the Defendant did not specify the process and result of balancing profits in the instant disposition, it clearly states that it is inappropriate to accept the drafting proposal of the instant case as an agricultural and forest area and a conservation zone within the scope of 9.6% of the site extension as the grounds for the instant disposition, thereby changing the site to a planned management area where the establishment of sports facilities can be installed.

E) However, although the reason for the instant disposition states that the golf course business is not a public project in itself, it can be understood that the Defendant did not accept the drafting proposal of this case without any need for balancing other interests because the golf course construction business itself does not in itself become a public interest, and it emphasizes that the purpose for the Plaintiff’s private interest is relatively low. Thus, it cannot be said that the Defendant merely stated the above, and there is a defect such as not paying at all the benefits related to the process of the instant disposition, such as where the Defendant does not pay the benefits.

2) In administrative plans such as urban management planning, the Defendant, who is an administrative body, has a broad freedom of formation or discretion, insofar as the balancing of interests as seen earlier is not reasonable. In this case, the Defendant does not necessarily have to accept the draft proposal of this case, on the ground that there is no particular problem in the extension of golf courses as a result of the examination of land suitability, the result of the examination of feasibility of conversion, the result of the examination of feasibility of conversion, and the result of the examination by the urban planning committee. The Defendant may determine whether to accept the draft proposal of this case with a wide range of formation

3) According to the 8-1-2-3 Guidelines for the Establishment of Urban and Gun Management Plans, in principle, in order to propose the installation of urban and Gun planning facilities, an implementer shall secure (including consent) at least 80% of the area of land subject to the determination of facilities (excluding the State and public

The Defendant issued the instant disposition on the ground that it did not demand the Plaintiff to supplement the problems or ratio of securing rights to the area of the site to be extended to the Plaintiff, on the ground that the Plaintiff failed to secure more than 80% of the total area of the site to be extended. However, the Defendant did not have any legal obligation to make such a request to the Plaintiff. ② If the Defendant secured the Plaintiff’s right more than 80% of the total area of the site for the existing golf course, not only the total area of the site to be extended, but also the total area of the site for the golf course, the Defendant did not express or offer a public opinion sufficient, and ③ The Plaintiff’s acquisition of rights more than 80% of the total area of the site to be extended is merely a single requirement for the drafting proposal of this case, even

Therefore, there is no error in the instant disposition that the Defendant presented that the Plaintiff failed to secure more than 80% of the total site area as the ground for the instant disposition.

D. Nevertheless, the lower court determined otherwise, and thus, it erred by misapprehending the legal doctrine on the balancing of interests and determination of illegality in the administrative plan, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant